Volume 106 — Missouri Reports

—Hon. E. L. Edwards, Judge. (1 ) The Cooper circuit court had no jurisdiction to try the cause. Section 1866, Revised Statutes, 1879, is specific and peremptory. Defendant did not waive any legal requirement by appearing. In a charge of felony, defendant cannot waive his legal rights against a plain statute. Consent did not confer jurisdiction. Ewing v. Brooks, 69 Mo. 49.

<p>1. Deed: agent to sell : power. Where an agent takes title to land simply for the purpose of selling it, his power, on his d -ath, does not descend to his heirs.</p> <p>2. -:-. Where the agent before his death conveyed to a third person, all interest of his heirs in the premises is thereby divested.</p>

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The claim should share pro rata with other claims. R. S. 1889, sec. 5948; Relfe v. Baker, 13 Mo. App. 184 ; 2 Perry on Trusts [3 Ed.] sec. 841; Carr v. Ins. Co., 33 Mo. App. 291.

— Hon. J. L. Thomas, Judge. The plaintiffs, who are husband and wife, sought by this proceeding to have a certain warranty deed, executed' by them in September, 1879, whereby lot 75 in Poplar Bluff, Missouri, the property of the wife, was conveyed to Hill, Nall & Co., declared a mortgage. What the recital or contents of this deed were does not appear, as the same was not offered in evidence.

Francois Circuit Court. — Hon. J. D. Fox, Judge. (1) The killing was clearly accidental, and the instruction on, and conviction of, manslaughter cannot be supported. This is not a case where the shooting, though unintentional, resulted from negligence in handling a firearm, such as to indicate carelessness or recklessness incompatible with a proper regard for human life. State v. Emory, 78 Mo, 77.

<p>1. Criminal Practice: elisors: statute. The trial court may, under Revised Statutes, 1889, section 8244, appoint elisors to summon a jury in a criminal case on the application of the prosecuting attorney, verified by his affidavit based on the grounds, that the sheriff and coroner were biased and prejudiced in favor of the defendant.</p> <p>2. -:-:-. The character and form of the evidence to authorize the appointment of the elisors rests in the discretion of the trial court, and its action will not be disturbed in the absence of evidence showing it to have been arbitrary and unjust.</p> <p>3. -: selection OE jury. Where the examination of a juror on his voir dire discloses that he was a competent juror, and the record proper shows that he was so accepted by the court, and he was not challenged, an entry in the stenographer’s notes of the evidence, and copied into the bill of exceptions, directing the juror “ to stand aside” will be disregarded as having been inadvertently made.</p> <p>4. -: competency OE JURORS. One who has heard the evidence given on the preliminary examination on a charge of a felony, and read the report in a local newspaper and formed an opinion therefrom, is not a competent jux’or.</p> <p>5. -: EVIDENCE: harmless error. A refusal to permit the defendant charged with murder to testify as to his intention in firing the fatal shot will not cause a reversal, where it appears such refusal did not injure the defendant.'</p> <p>6. -: separation oe jury. The objection that the jurors in a murder trial were permitted to attend a public lecture will not be considered in the supreme court, where there is nothing in the record to show such alleged fact.</p>

— Hon. C. H. S. Goodman, Judge. (1) Before the accused can be convicted of burglary the evidence must show affirmatively and definitely that the doors through which defendant might have entered were closed. State v. Kennedy, 16 Mo. App. •287; Lowder v. State, 63 Ala. 143; s. c., 35 Am. Rep. 9 ; Williams v. State, 52 Ga. 580. It is not sufficient to prove that it was the custom to keep the doors closed. Oreen v. State, 68 Ala. 539.

Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The court erred in not fully instructing the jury on the law as applicable to the case. State v. Palmer, 88 Mo. 568; State v. Barham, 82 Mo. 67; State v.. Banks, 73 Mo. 592. (2) First. The court should have instructed the jury upon murder in the second decree. Second. The court should have instructed the jury upon manslaughter in the fourth degree. Kerr, Homicide, sec. 523, p. 575; State v. Young, 99 Mo. 666.

Hon. Thos. H. Bacon, Judge. This is an action for damages by respondent as widow of John J, Schaub, deceased, against the appellant, for the alleged negligent killing of said John J. in this, that on the ninth of-November, 1887, said deceased was a brakeman on one of defendant’s freight trains, and, in endeavoring to get off said train to uncouple some cars, he was struck by a car negligently left standing on a side or switch track of defendant so close that it was dangerous.

<p>1. Appellate Practice: sufficiency of petition: jurisdiction. Whether the petition states a cause of action or the court has jurisdiction of the subject-matter of the suit, may be raised for the first time in the appellate court.</p> <p>2. Malicious Prosecution: cause of action. An action for malicious prosecution can be maintained where the original action was begun by civil summons, unaccompanied by the arrest of the defendant therein, or the seizure of his property. (Affirming Brady v. Ervin, 48 Mo. 533.)</p> <p>3. -: malice. The voluntary dismissal of a civil suit by the plaintiff does not, in a subsequent suit against him for malicious prosecution, constitute prima facie evidence of malice.</p> <p>4. -: MALICE : WANT OF PROBABLE CAUSE : PRACTICE. In an action for malicious prosecution the ihference of malice from want of probable cause is not a necessary one, but malice may be inferred from the want bf probable cause, and from the voluntary dismissal of the alleged malicious suit, such inference boing one of fact and for the jury, under proper instructions.</p> <p>5. -—: preponderance of evidence. The plaintiff, in a suit for malicious prosecution, founded on .the voluntary dismissal of an action for slander, is required to establish the truth of the slanderous words, if in issue only by the preponderance of the evidence.</p> <p>0. Slander : candidate for office : privilege. False statements defamatory of the character of a candidate for public office, though made in good faith, are not privileged.</p>

— Hon. E. M. Hughes, Judge. (1) The indictment properly charges larceny from a railroad car under the provisions of section 1309, Revised Statutes, 1879. It is not necessary that the value of the property stolen should be alleged, in the indictment. Under this section of the statute, value is required to be alleged and proven when the kind and extent of the punishment depends on the value of the stolen article ; otherwise it is not. 2 Bish. Crim.

<p>Practice: dill of exceptions. Where there is no bill of exceptions, and no error appears in the record proper, the judgment will be affirmed upon appeal.</p>

— Hon. J. L. Thomas, Judge. (1) The act of the legislature ( Acts, 1887, p. 153) creating the Piedmont branch of the Wayne circuit court is void because in conflict with article 4, section 54, of the constitution of Missouri. First.

<p>1. Criminal Law: practice : indorsement op names op witnesses on indictment. While the names of all material witnesses should ''be indorsed upon an indictment, the state may avail itself of any testimony which the grand jury could not obtain, which it disco\ers before it closes its case. (B. S. 1889, sec. 4097.)</p> <p>2. -:-: witness. One jointly indicted with a defendant on trial may be used as a witness against the latter, where the indictment against such witness has been dismissed before the defendant entered upon his defense.</p> <p>8. -: -: larceny. One indicted for larceny from the person may be convicted of simple grand larceny.</p> <p>4. -:-: separation op jury. The separation of the jury in a criminal trial, contrary to the order of the court (B. S. 1879, sec. 1910), before they retire to consider of their verdict, will be a • ground for a new trial, unless it be shown affirmatively by the state that the jurors were not subjected to improper influence.</p> <p>5. -: — :-:-. . Where the defendant offers to show by competent evidence that the jury separated, contrary to the order of the court, which offer is refused by the court, the offer will stand for the fact itself, and will entitle him to a new trial.</p>

<p> Certified from Kansas City Court of Appeals. </p> <p>Transferred to Kansas City Court of Appeals.</p>

<p>Appeal from, Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p> <p>Cited the following authorities : State v. Clay, 100 Mo. 571; Slate v. Crocker, 95- Mo. 389; State v. Horn, 93 Mo. 190 ; State v. McQhesney, 90 Mo. 120; 1 Bish. Crim. Proc., secs. 81, 86, 88, 519, 530, 549, 553, 566, 568 ; 1 Whar. Pi-ec. of Indictments and Pleas [ 3 Rev. Ed.] sec. 264, and notes on bottom pages 268-279, inclusive, and secs. 265-272, inclusive.</p> <p>(1) 'The indictment charges the offense in the language of the statute, and is sufficient. State v. Clay, 100 Mo. 571, and cases cited ; Stale v. Sarony, 95 Mo. 351, and cases cited ; State v. Bayne, 88 Mo. 604, and cases cited; State v. Porter, 75 Mo. 171. (2) The instructions, therefore, which the court gave, properly declared the law to the jury, and no error was committed in refusing those asked by defendant. Com. v. Call, 21 Pick. 515; 2 Bishop, Crim. Proc., sec. 174; 1 Bishop, Crim. Proc., secs. 332,334; 2 Bishop, Criminal Law, sec. 472:\_State v. Bayne, supra.</p>

— Hon. G. D. Burgess, Judge. (1) The power to regulate commerce between citizens of the different states is exclusive, and belongs to congress alone. Welton v. Slate, 91 U. S. 275; Tiernan v. Rinlter, 102 U. S. 127; Chy Lung v. Freeman, 2 Otto, 275; Railroad ». Illinois, 118 U. S. 573 ; Leisy v. Hardin, 135 U. S. 100; License Cases, 5 Howard, 504.

<p>1. Land.: encouraging one to buy adverse title: estoppel. Where one advises and encourages another to buy an adverse title to land, he will be estopped to deny the vendee’s title, even though he was acting under a mistake of law as to the validity of his own title.</p> <p>2. Money : misapplication oe payment. One cannot receive money for one purpose and arbitrarily apply it to another.</p>

— Hon. Ben. E. Turner, Judge. There is a direct charge that the goods were to be paid for on delivery, and that the defendants had agreed to give, and the corporation had agreed to receive, notes, secured by mortgage on the machine as payment. This makes it an agreement to pay for the machine upon the delivery thereof, and is as much so as if the payment agreed upon was to have been made in money.

— Hon. John E. Ryland, Judge. (1) The plea in abatement could not avail defendant. R. S. 1889, secs. 4067, 4068. Even if the statutory objections had been made, they would not have been of any avail at the time they were made. State v. Holcomb, 86 Mo. 371; State ®. Turlington, 102 Mo. 642. (2) The jurors to whom objections were made were competent. State ». Walton, 74 Mo. 270 ; State ». Cunningham, 100 Mo. 382 ; State ®. Brooks, 92 Mo. 542 ; Slate ®. Greemoade, 72 Mo. 298.

— Hon. E. L. Edwards, Judge. (1) The court erred in permitting James Murray to testify in favor of the state, and against the defendant Jackson. The indictment is a joint one against witness and Jackson, and the state had no right, under the statute, to swear him over the objections of the defendant. R. S. 1889, secs. 4217, 4218 ; State v. CMo Chiagk, 92 Mo. 406.

— Hon. J. F. Hale, Judge. (1) There was no evidence, whatever, showing that the offense was committed in Ozark county. State r. Hughes, 82 Mo. 86; State v. McKay, 20 Mo. App. 149.

— W. J. Orr, Esq., Special Judge. (1) An attorney who has been of counsel is not a legal voter; and, although there may have been more than three attorneys qualified to vote, voting at such election, said illegal vote may have changed the result of the election.. R. S. 1889, sec. 3323. (2) W. J. Orr had not the necessary, qualifications of a circuit judge. Const. 1875, art 6, sec. 26; R. S. 1879, sec. 1107.

— Hon. Joseph Cravens, Judge. The defendant, Charles Seaton, was jointly indicted with his brother, Grant Seaton,.in the circuit court of Jasper county, at its September term, 1889, for murder in the first degree, for the killing of one Lewis Channell in said county on the fifth day of June, 1889, by shooting him in the head with a pistol.

— Hon. G. D. Burgess, Judge. (1) The indictment was insufficient, and the demurrer to it ought, to have been sustained. - Kelley’s Crim. Prac., sec. 851; State v. Buster, 90 Mo. 514. {2) The court erred in admitting in evidence the letter, dated September 7, 1888, from Mrs. Terry, the defendant’s wife, to Celia Steele, the prosecuting witness.

—Hon. C. A. Anthony, Judge. (1) The court erred in refusing to continue or postpone the trial. McKay v. State, 12 Mo. 492; Bice v. Melendy, 36 Iowa, 166; State v. Lewis, 74 Mo. 222; State v. Walker, 69 Mo. 274; State v. Loe, 98 Mo. 609. Sickness of counsel is good ground for continuance. State v. Bailey, 94 Mo. 311; Thompson v. Thornton, 41 Cal. 626; Slate v. Stegner, 33 N. W. Rep. 340 ; Stockholm v. State, 7 S. W. Rep. 338.

— Hon. C. C. Bland, Judge. (1) The third instruction given on the part of the-state is erroneous, as it virtually told the jury that the fact that John Mounce was the defendant,' and a witness-in his own behalf, did not entitle him to credit. (2) The fourth instruction is also erroneous as it directed the-jury that they might disregard testimony, even if they believed it to be true. The evidence in this case does-not bring it within the rule laid down by the courts.

<p> Certified from Kansas City Court of Appeals. </p>

— Hon. J. H. Slover, Judge. (1) Tlie court peremptorily directed tbe jury to find tbe issues for tb,e plaintiff, thereby usurping the province of the jury. Barry v. Otto, 56 Mo. 177; Moore v. Pieper, 51 Mo. 157; Durkee v. Chambers, 57 Mo. 575 ; St. Vrain v. C. B. L. Co., 56 Mo. 590 ; Wilson r>. Board of Ed., 63 Mo. 137; Smith v. Stokes, 76 Mo. 178.

— Hon. Silas Woodson, Judge. (1) The court erred in overruling the motion to quash the indictment, for the reason that it did not state facts sufficient to constitute any offense against the laws of the state — did not charge the defendant with any offense. Being founded on a statute creating an offense unknown to the common law, the indictment must set forth all the constituent facts necessary to bring the accused fully within the provisions of the statute.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) On tlie trial the plaintiff abandoned the case ■stated in his petition, and without warning sprung a new case of fraud, affecting Mrs. Bobb’s title to the property, which was not alluded to in his petition, and was based on an entirely new theory. This demands a reversal of the judgment. The particular acts of fraud and the particular case on which recovery is sought must be fully stated in the petition.

— Hon. W. L. Wallace, Judge. (1) The indictment in this case was attempted to be drawn under section 3479, Revised Statutes of 1889, but it fails to state the offense provided for by that section, and defendant’s objection to the introduction of any testimony should have been sustained. There-is a material difference between the case at bar and State v. White, 76 Mo. 96. '(2) The court erred in giving instructions asked by the state.

— Hon. D. A. DeArmond, Judge. The defendants were jointly indicted in the circuit court of Henry county, at its September term, 1889, for burglary and larceny, for the breaking into and entering a certain building belonging t&the city of Clinton, in Henry county, Missouri, called the calaboose of said city, on the-day of September, 1889, in which said building •divers goods, wares, merchandise and valuable things were kept and deposited, with the intent to steal said goods,…

— Hon. J. A. Sloven, Judge. (1) The doctrine is well established in this state that a deed absolute in form may be shown to be a mortgage. Worley e. Dryden, 57 Mo. 226 ; Turner v. Kerr, 44 Mo. 429; Sharkey v. Sharkey, 47. Mo. 543; Newel v. Keeler, 13 Mo. App. 189; O' Neill v. Capelle, 62 Mo. 202. (2) The transactions out of which this suit grew commenced with an application for a loan, and terminated in the execution of an absolute deed.

-Hon. Joseph Craven, Judge. The grand jurors of Newton county, state of Missouri, at the May term of the Newton county circuit court, on the twenty-fourth day of May, 1889, found and returned into court an indictment against the defendant, as follows : “The grand jurors for the state of Missouri, impaneled, sworn and charged to inquire within and for the body of the county of Newton and state of Missouri aforesaid, upon their oaths present and charge that on or about…

— Hon. D. A. DeArmond, Judge. (1) The deed from Sylvester Hall to George L. Hall being duly executed and acknowledged and in the possession of the grantee, there was prima facie evidence of delivery. Terhune v. Oldis, 44 N. J. Eq. 146; s. c., 14 Atl. Rep. 638.

— C. V. Buckley, Esq., Special Judge. (1) The court erred in dismissing plaintiff’s bill and rendering judgment for defendants. The questions in this case have already been decided in favor of plaintiff. State v. McBride, 81 Mo. 349; s. o., 15 S. W. Rep. 72. (2) Purchases at public sales with debtor’s money are fraudulent and void. Bump on Fraud. Conveyances [2 Ed.] p. 255 ; Gutzweiler v. Lackman, 23 Mo. 168 ; Benne v. Schnecko, 100 Mo. 251.

<p>1. Partnership: firm creditors : partnership assets : equities. A partner cannot transfer the firm property for the payment of his individual debts without the consent or acquiescence of his copartners.</p> <p>2. --:-:-:-. Each partner has the right inequity to have the firm property applied to the payment of the firm debts, and through these equities existing between the partners the firm creditors derive the right to have the partnership assets appropriated to the payment of the firm debts in preference to the individual debts of the copartners.</p> <p>3. -: -: -: -. The rights of the firm creditors to such preference being derived through the equities of the partners among themselves can exist only so long as the partnership continues._</p> <p>4. -: -: -: -. The bona fide waiver by the partners of their equitable rights to have the assets of the firm first applied to payment of the firm debts necessarily destroys the derivative equities of the firm creditors.</p> <p>.'5. -: -: -: -. The acquiescence of one partner in a mortgage by the other of the latter’s “right, title and interest ” in the property to secure an individual debt will not defeat the equity of the firm creditors to have the firm property applied to the payment of the firm debts.</p> <p><■6. -: -:--:--. While, after the dissolution of even an insolvent partnership by the sale and transfer of all its assets, the firm creditors cannot follow the property into the hands of the purchasers, yet the transaction must have been in good faith and not for a fraudulent purpose.</p> <p>"7. Practice; assignment for collection : trustee of express trust. One to whom demands against another are assigned for collection is a trustee of an express trust, and may sue in his own name,' and on his death the suit may be revived in the name of his administrator, it not appearing that a successor in the trust has been agreed on or appointed.</p> <p>•fi. Equity: legal DE*r ynds : creditor’s bill. The general rule is that, before a creditor can invoke the aid of a court of equity in the collection of his debt, he must reduce it to judgment and exhaust his legal remedies.</p> <p>*9.--:--:--. The foregoing rule is applicable only to claims which are purely legal, and for the satisfaction of which the creditor has no lien dr equitable claim upon specific property.</p> <p>10. --: complete justice. Where a court of equity.has acquired jurisdiction of a matter, it will proceed to do full and complete justice between the parties and dispose of the whole matter.</p> <p>11. Judgment, Acceptance of Note for. The release of a judgment against a firm and the acceptance of the individual note of one of the partners will not release the partnership from liability in the absence of an intention to that effect.</p> <p>13. Practice: amendment of pleading. ' A petition may be amended to make it correspond to changes which have occurred since the commencement of the suit, and new parties which have become interested in the property in litigation may be brought in.</p> <p>18. Estoppel: foreclosure sale. A creditor by claiming a surplus arising from the foreclosure of a deed of trust will not be estopped to question its validity, because made in fraud of creditors on the objection of one who w..s a party to the fraud.</p> <p>14. Equity: subrogation. A creditor, who, in order to preserve his own security, is compelled to pay a prior incumbrance held by another creditor, will be subrogated in equity to the rights of such, creditor to the estent necessary for his own protection.</p>

(1) Plaintiff has attempted to blend in one count a legal and equitable cause of action ; one to obtain a money judgment, the other to set aside certain conveyances alleged to have been fraudulent. This he cannot do. While legal and equitable causes may be united in the same petition, each cause of action must be separately stated with the relief sought. R. S. 1889, sec. 2040 ; McCoy v. Yager, 34 Mo. 134; Henderson v. Dickey, 50 Mo. 161 ; Scott v. Robarás, 67 Mo. 289.

Louis Court of Criminal Correction. Hon. E. A. Noonan, Judge. This is a charge of criminal libel. The defendant lived in Mexico, Missouri, and the Sprague Collecting Agency did business in Chicago, Illinois, and the defendant’s firm, consisting of Kabrich, Armstrong, Atkins and Snyder, employed this agency to do some collecting for them, and among the claims placed in its hands was one of $5 against the prosecuting witness, Mary Vincil.

— Hon. O. M. Spencer, Judge. This is an action by the widow of Henry Rapp for statutory, damages on account of Ms death. He was struck and killed by an engine of defendant, at a public road crossing in Buchanan county, in 1887.

— Hon. James M. Sandusky, Judge. (1) Instruction, numbered 1, asked by defendant should have been given. There is no evidence tending to show that defendant was negligent in furnishing the piece of timber that broke, or that it was defective, improper or insufficient. . The evidence shows the ■contrary. Shultz v. Railroad, 36 Mo. 1; Smith v. Railroad, 37 Mo. 287; McDermott ».

<p>Practice: failure of proof : ejectment. Where, in an action of ejectment, the plaintiff fails to offer any evidence of title in himself, and the trial court refuses to grant a new trial upon the ground that there is no evidence to support the verdiot, the judgment in plaintiff’s favor will be reversed upon appeal.</p>

<p> Appeal from, Andrew Circuit Court. </p> <p>Transferred to Kansas City Court of Appeals.</p>

— Hon. Samuel P. Huston, Judge. This is an action upon a special tax bill. On May 6, 1881, the city oí St. Joseph, then governed by a special charter, established by ordinance a main or public sewer, designated the “Messanie street sewer,” extending from the Missouri river along Messanie street to the east line of Tenth street, and entered into a contract with Patrick Morley to construct it, reserving power to stop the work, at any time, on ten days’ notice.

— Hon. C. A. Anthony, Judge. The lower court erred in refusing to instruct the jury to find for the defendant: First. Because there is no evidence in the record tending to show that the defendant at the time of Fountain Finnell’s death had in his possession any “money, notes, accounts^ bonds or other choses in action” belonging to deceased, as charged in the first count. Second.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in excluding the testimony of appellant Green, offered in his own behalf, as to the fair value of the services rendered by him. R. S., sec. 4518. (2) The court erred in excluding the testimony of John G. Priest, offered to prove what would be reasonable compensation.

— Hon. Ben. E. Turner, Judge. (1) The plaintiff was entitled to have the report of the commissioners set aside, and the jury trial ordered as a constitutional right. Railroad v. Town-Site Co., 103 Mo. 451; Const, of Mo., art. 12, sec. 4; Railroad v. Almeroth, 13 Mo. App. 91; Railroad v. Story, 96 Mo. 611. ■ (2) The plaintiff did no act, whereby he waived a trial by jury. Railroad v. Story, 96 Mo. 611.

— Hon. W. I. Wallace, Judge. (1) The oral evidence in the case having been written out in full, examined and certified to be correct by the trial judge, and attached to and made a part of the bill of exceptions before it was signed, is properly preserved. Tipton v. Renner, 105 Mo. 1; State v. Wear, 101 Mo. 414. (2) The evidence in this case is insufficient to sustain a conviction for rape. First.

— Hon. J. M. Sandusky, Judge. (1) Where a voluntary trust is once perfectly created, and the relation of trustee and cestui que trust is once established, it will be enforced though the settler has destroyed the deed or has attempted to revoke it by making a second voluntary settlement of the same property, or if the estate, by some accident, becomes revested in the settler. Perry on Trusts, sec. 104.

Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The verdict was warranted by the evidence; the quantum of force used was more than sufficient to make the offense robbery. State v. Broderick, 59 Mo. 318, and cases cited. (2) If the accused told the truth he is guilty of no offense ; if the prosecuting witness is to be believed, he is guilty of robbery; hence, there was no error in refusing to instruct for petit larceny. State v. Brown, 104 Mo. 365.

Louis City Circuit Court.—Hon. James E. Withrow, Judge. This actiou is for personal injuries to plaintiff alleged to have been sustained by him while a passenger upon one of defendant’s cable railway cars in St. Louis. The answer was a general denial.

Mandamus. This is an extraordinary proceeding by mandamus, brought by the relators, constituting the board of public works of Kansas City, and W. L. Sheppard, their appointee, as superintendent of streets against respondent, John May, the superintendent of streets of said city, appointed by the mayor, by and with the consent of the common council of said city, for the possession of certain office furniture and public records.

— Hon. Andrew Ellison, Judge. (1) The undisputed averments of tlie return showed that the treasurer himself, together with the funds in the treasury, which the relator was seeking to have applied to his warrant, were before the federal court, which, at the time of relator’s petition, had acquired jurisdiction of the officer and his funds. Therefore, the state court acquired no jurisdiction, and appellant’s motion to dismiss should have been sustained.

— Hon. H. P. Stratton, Judge. The party to be estopped must have known his rights. Burle v. Aclams, 80 Mo. 504. And from the evidence in this case it clearly appears that, when Wm.

— Hon. E. L. Edwards, Judge. (1) The first objection in defendant’s demurrer to the petition of the relators, “that the petition states no-cause of action against defendants,” is without foundation. Wag. Stat. 1872, p. 118, secs. 6, 8 ; R. S. 1879,. secs. 287, 290; State to use v. Campbell, 10 Mo. 724 Clark v. Henry's Adm’r, 9 Mo. 336; Woodworth v. Woodworth, 70 Mo. 601.

— Hon. J. H. Slover, Judge. (1) The court erred in giving instruction, numbered 2, of its own motion, which was given on the fourth day after the case was submitted. First. Whether • there was any negligence in either of the respects alleged was for the jury. 20 C. L. J. 104; Thompson on Passengers, 444; Fleck v. Railroad, 134 Mass. 481; Aslibrook v. Railroad, 18 Mo. App. 290 ; Donney v. Hendrie, 46 Mich. 498 ; Geistle v. Railroad, 23 Mo.

<p>1. Criminal Law: justice’s court: commutation of sentence: statute. A justice of the peace may, under section 4355, Revised Statutes,1889, on the application of a person who is unable to pay a fine assessed against him, change such fine to imprisonment in the county jail for a definite period, as provided by said section, and this he may do after the original sentence has been passed.</p> <p>3. Constitutional Law: r. s. 1889, sec. 4355: pardoning power. Section 4355, Revised Statutes, 1889, is not in violation of section 8 of article 5 of the constitution vesting in the governor the power to grant reprieves, commutations and pardons.</p> <p>-3. Criminal Law: justice’s court : change of sentence : costs. Where a defendant in his application for a change of punishment under Revised Statutes, 1889, section 4355, made no mention of costs and the justice made no order concerning them, but only commuted the fine to imprisonment for a given time, defendant is not entitled to his discharge upon serving süch time, until he has paid the costs or complied with the law for the relief of insolvents.</p>

— Hon. O. M. Spencer, Judge. It was proper for the St. Joseph & Iowa Railroad Company, in appropriating lands for its right of way, to… Held: however, that the plaintiff had legal corporate existence at the time these proceedings were begun, its ’power to take land for the use of its road had ceased to exist before the beginning of these proceedings (Beany v. Railroad, 30 Me. 498 ; Railroad n. Railroad, 31 N. J. 207; Railroad v. St. Louis, 66 Mo. 250), and the legislature…

— Hon. Ben. E. Turner, Judge. The court. erred in finding for defendant in matter of possession. 2 Wagner’s Statutes, secs. 216, 217, p. 1205; secs. 218, 219, p. 1206 ; Railey v. Quinn, 76 Mo., p. 635.

<p>The Case of Pitkin et al. v. Shacklett, ante, p. 571, followed and affirmed.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. There can be no doubt that by the contracts in question Dorriss became the legal owner of the stock, subject to the claim of. Mathews and Whitaker for so much of the purchase money as remained unpaid. Markham v. Jaude, 41 N. Y. 235; Baker v. Drake, 66 N. Y. 518. This title of ownership necessarily devolved on the administrator.

— Hon. E. M. Hughes, Judge. (1) The verdict of the jury of conviction is contrary to the evidence ; for that of the prosecutrix shows that she was not seduced by the defendant, but that she procured the promise of marriage to her as a consideration for the intercourse. The defendant was, therefore, entitled to an instruction to acquit. State v. Reeves, 97 Mo. 677; Rutnam v. State, 16 S. W. Rep. 97.

— Hon. J. M. Sandusky, Judge. (1) Upon the consolidation of the defendant company with the “Kansas City & Wyandotte Railway & Tunnel Company,” “The Riverview Railway Company” and “The Brighton & Chelsea Park Railway Company,” the defendant railway company, ceased to exist as a corporation, its power to sue and capacity tO' be sued by that name was extinguished, and a new corporation was created.

Habeas Corpus. (1) The relator was not bound to answer the question propounded to him by the grand jury, for the reason that the answer would inform the grand j ury of the names of the other parties in any game of cards with himself, which knowledge would enable the grand jury to summon said parties before them and compel them to give evidence of relator’s gambling.

<p>Appeal from Carroll Circuit Court. — Hon. J. M. Davis, Judge.</p>

— Hon. Andrew Ellison, Judge. (1) Under the pleadings and evidence the finding ought to be for the plaintiff, as the statute of limitation will not run. Moore v. Harris, 91 Mo. 622; Wilson v. Albert, 89 Mo. 537 ; Anderson v. McPike, 86 Mo. 299. (2) The statute of limitation cannot be worked as a bar where the occupancy relied upon to support it is neither adverse, nor accompanied by any act showing a claim of exclusive ownership.

Habeas Corpus. (1) The filing by the defendant of the required affidavit, under section 4174, Revised Statutes, 1891,' rendered the judge of the St. Louis court of criminal correction incompetent, and disqualified him as the judge of said court from hearing the case or exercising the powers of an examining magistrate in the particular instance. All acts done after the filing of the affidavit were coram non judice.

Mandamus. (1) The respondent admits the allegations in the writ contained, to-wit, “that the jury was summoned for the purpose of assessing damages and benefits ; he refused to impanel and swear said jury, and overruled relator’s application for condemnation of the realty herein as provided .by law.” It was his duty to proceed to condemnation. Sess. Acts, 1872, p. 328, secs. 1-7, art. 7.

— Hon. E. L. Edwards, Judge. The defendant was indicted in the circuit court of Moniteau county at the September term, 1889, for embezzlement and grand larceny. The indictment contains fifteen counts. The first was for embezzlement; the remaining fourteen were for grand larceny. The evidence showed that the defendant was the clerk .and employe of a mercantile firm, Cavers & Thomas, in California, Missouri.

— Hon. T. A. Gill, Judge. (1) The court erred in awarding a change of venue to Jackson county. The change should have been to some county in tin same circuit. Potter v. Adams, 24 Mo. 159 ; State v. Knight, 61 Mo. 373 ; Taylor v. Railroad, 68 Mo. 397; Squires v. City, 89 Mo.' 226; Dowling v. Allen, 88Mo. 299; State v. Gabriel, 88 Mo. 631. (2) The petition did not state a cause of action. R. S. 1879, sec. 8519; Gr.